Judge tosses eligibility case against Congress

A federal judge has dismissed a lawsuit filed by Charles F. Kerchner Jr. and others against Congress, alleging members of that institution failed in their constitutionally specified responsibility to evaluate Barack Obama and make sure of his eligibility to occupy the Oval Office.

Attorney Mario Apuzzo had filed the action in January on behalf of Kerchner, Lowell T. Patterson, Darrell James Lenormand and Donald H. Nelson Jr. Named as defendants were Barack Hussein Obama II, the U.S., Congress, the Senate, the House of Representatives and former Vice President Dick Cheney along with House Speaker Nancy Pelosi.

The case focuses on the alleged failure of Congress to follow the Constitution. That document, the lawsuit states, “provides that Congress must fully qualify the candidate ‘elected’ by the Electoral College Electors.”

The Constitution provides, the lawsuit says, “If the president elect shall have failed to qualify, then the vice president elect shall act as president until a president shall have qualified.”

“There existed significant public doubt and grievances from plaintiffs and other concerned Americans regarding Obama’s eligibility to be president and defendants had the sworn duty to protect and preserve the Constitution and specifically under the 20th Amendment, Section 3, a Constitutional obligation to confirm whether Obama, once the electors elected him, was qualified,” the case explained.

On his blog, Apuzzo confirmed Judge Jerome Simandle in New Jersey dismissed the case.

“Judge Simandle ruled that the plaintiffs do not have Article III standing and that therefore the court does not have subject-matter jurisdiction,” he explained. “The court found that the plaintiffs failed to show that they suffered an ‘injury in fact.’ It added that plaintiffs’ alleged injury is ‘only a generally available grievance about government’ and ‘is one they share with all United States citizens.’ Finally, it said that plaintiffs’ ‘motivations do not alter the nature of the injury alleged,'” Apuzzo wrote.

“By way of footnote, the court said that even if the plaintiffs could show that the court had Article III standing, they would not be able to show that the court should exercise jurisdiction because prudential standing concerns would prevent it from doing so,” he added. “Finally, the court again in a footnote said that it cannot take jurisdiction of the issue of whether Obama is a ‘natural born citizen’ and whether Congress has acted constitutionally in its confirmation of Obama for president because the matter is a ‘political question’ which needs to be resolved by Congress.”

The court suggested the “remedy” is “voting at the polls,” he said.

But he noted there was no ruling that Obama’s Hawaiian birth was proven, or that it was proven Obama is a “natural born” citizen.

“Given the nature of the court’s decision, the American people unfortunately still do not know whether Obama is constitutionally qualified to be president and commander in chief,” he said.

A appeal will be filed with the 3rd Circuit Court of Appeals in Philadelphia, he said.

Kerchner said in a statement released to The Post & Email blog it’s a catch-22.

“Congress told the people it was up to the courts. Now the federal court system, which is supposed to be the guardian of the Constitution, tells the We the People it is up to the Congress. And even worse, the federal court in my case just told the people that as long as the Congress and the executive branch usurp and ignore the Constitution in such a way as to injure all citizens and everyone in this nation equally, it is quite OK with them,” he said.

“What’s next, for Obama or the DNC-led Congress to usurp the 1st Amendment and 2nd Amendment rights of We the People? and then the courts will tell us that we were all injured equally so we have no standing to redress it and we lose our freedom of speech and our right to bear arms?” he said.

“We’ve lost a skirmish or battle. Now on with the war in the higher courts!” he said.

He wrote, “The federal courts and judges are committing treason to the Constitution by not taking jurisdiction and getting to the merits in the various cases before them regarding the Article II eligibility-clause question for Obama.”

He said his basis for such a statement is the opinion of U.S. Supreme Court Chief Justice John Marshall, who wrote in an 1821 case, Cohens vs. Virginia:

“It is most true that this court will not take jurisdiction if it should not: but it is equally true, that it must take jurisdiction if it should. The judiciary cannot, as the legislature may, avoid a measure because it approaches the confines of the Constitution. We cannot pass it by because it is doubtful. With whatever doubts, with whatever difficulties, a case may be attended, we must decide it, if it be brought before us. We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given. The one or the other would be treason to the Constitution. Questions may occur which we would gladly avoid; but we cannot avoid them. All we can do is, to exercise our best judgment, and conscientiously to perform our duty. In doing this, on the present occasion, we find this tribunal invested with appellate jurisdiction in all cases arising under the Constitution and laws of the United States. We find no exception to this grant, and we cannot insert one.”

Kerchner added, “The … judges in the … cases should simply read the words of U.S. Supreme Court Chief Justice Marshall from the past and take jurisdiction of the constitutional question of the Article II eligibility clause in the Constitution and proceed to a fact-finding hearing and trial on the merits.”

WND has reported on dozens of legal challenges to Obama’s status as a “natural born citizen.” The Constitution, Article 2, Section 1, states, “No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President.”

Some of the lawsuits question whether he was actually born in Hawaii, as he insists. If he was born out of the country, Obama’s American mother, the suits contend, was too young at the time of his birth to confer American citizenship to her son under the law at the time.

Other challenges have focused on Obama’s citizenship through his father, a Kenyan subject to the jurisdiction of the United Kingdom at the time of his birth, thus making him a dual citizen. The cases contend the framers of the Constitution excluded dual citizens from qualifying as natural born.

Further, others question his citizenship by virtue of his attendance in Indonesian schools during his childhood and question on what passport did he travel to Pakistan three decades ago.

Adding fuel to the fire is Obama’s persistent refusal to release documents that could provide answers and the appointment of myriad lawyers to defend against all requests for his documentation. While his supporters cite an online version of a “Certification of Live Birth” from Hawaii as his birth verification, critics point out such documents actually were issued for children not born in the state.

The ultimate questions remain unaddressed to date: Is Obama a natural born citizen, and, if so, why hasn’t documentation been provided? And, of course, if he is not, what does it mean to the 2008 election or the U.S. Constitution if it is revealed that there has been a violation?

WND has reported on another case, being heard by U.S. District Judge David Carter in California. He released a ruling noting the government’s motion to dismiss was being taken “under submission.” But he also approved a final calendar for the case to be proceeding in his court.

Under the schedule ordered by the judge the final pretrial conference is scheduled Jan. 11, 2010, while the jury trial is Jan. 26, 2010.

WND also has reported that among the documentation not yet available for Obama includes his kindergarten records, Punahou school records, Occidental College records, Columbia University records, Columbia thesis, Harvard Law School records, Harvard Law Review articles, scholarly articles from the University of Chicago, passport, medical records, files from his years as an Illinois state senator, his Illinois State Bar Association records, any baptism records and his adoption records.

The “certification of live birth” posted online and widely touted as “Obama’s birth certificate” does not in any way prove he was born in Hawaii, since the same “short-form” document is easily obtainable for children not born in Hawaii. The true “long-form” birth certificate – which includes information such as the name of the birth hospital and attending physician – is the only document that can prove Obama was born in Hawaii, but to date he has not permitted its release for public or press scrutiny.

Oddly, though congressional hearings were held to determine whether Sen. John McCain was constitutionally eligible to be president as a “natural born citizen,” no controlling legal authority ever sought to verify Obama’s claim to a Hawaiian birth.